PROCEEDINGS IN MEMORY OF CUSHMAN KELLOGG DAVIS IN THE MINNESOTA SUPREME COURT AND THE MINNESOTA LEGISLATUE 1901 Foreword By Douglas A. Hedin Editor, MLHP On November 27, 1900, Senator Cushman Kellogg Davis died in St. Paul at age sixty-two. He was governor of the state from 1875 to 1877. He was elected U. S. Senator by the state legislature in 1887 and re-elected in 1893 and 1899. Memorial services were held at a joint session of the Minnesota House of Representatives and Senate on February 18, 1901, and before the Minnesota Supreme Court on April 2, 1901. They follow. They have been reformatted. Several long paragraphs have been divided for ease of reading. The photograph of Davis on the first page is from Autobiographies and Portraits of the President, Cabinet, Supreme Court and Fifty-fifth Congress (1898), and that on page 17 is from Frank Holmes, et al., 4 Minnesota in Three Centuries (1908). 2 MINNESOTA SUPREME COURT 81 Minnesota Reports xxiii - xxxv (1901) PROCEEDINGS lN MEMORY OF SENATOR CUSHMAN K. DAVIS. __________ On the afternoon of April 2, 1901, in the supreme court room at the state capitol, Hon. Hiram F. Stevens, president of the Minnesota State Bar Association, addressed the supreme court, then in session, as follows: "May it please the Court: “Since the beginning of the last term of this court, in the death of Cushman K. Davis the bar of the state of Minnesota has lost one of its brightest ornaments, the State its foremost citizen and the Republic a statesman of unsullied character and great influence. The State Bar Association, whose representative I am upon this occasion, have deemed it proper that in this high tribunal suitable recognition should be paid to the character and ability and services of our departed brother, and your Honors have kindly granted our request. We have appointed a committee which has prepared a memorial which will be presented, and we respectfully ask that the memorial be entered upon the records of the court. The memorial will be presented by General Sanborn.” On behalf of that committee General Sanborn then presented the follow- ing memorial and moved that it be spread on the minutes of the court. MEMORIAL. Since the meeting of this court on the first day of its last term, one of the most distinguished members of this bar and one of the most illustrious of our citizens has been removed by death. The State Bar Association and the bar of the state have directed that there shall be presented to this court at this time a brief Memorial of the life and services of the Honorable Cushman K. Davis, who departed this life in St. Paul on the 27th day of November, 1900. He came to St. Paul and commenced the practice of his 3 profession as a partner of the Honorable Willis A. Gorman, in 1865, and continued constantly in the practice in all the courts of the state, and in the Federal courts, to the time of his death. During this period, in addition to his partnership with General Gorman, he was for several years a member of the law firm of Davis, O’Brien & Wilson, and of the law firm of Davis, Kellogg & Severance from the time when he was first elected senator to the time of his death. He also practiced without any partner during the time that passed between the termination of his gubernatorial office in 1876 and his election to the United States Senate in 1887. He was a great lawyer in the broadest and truest sense. As an advocate before the jury he was without a peer in the state. This he demonstrated during the early days of his practice in the defense of Van Solen, tried for murder in Ramsey county, with the strongest circumstantial evidence produced by the state against him, and his life was no doubt saved by the eloquence, logic and power of our deceased friend. On the trial of the impeachment of Judge Page before the Senate of Minnesota, he added vastly to his reputation as a lawyer and logician and as a speaker of extraordinary power, and his reputation as an advocate and lawyer early became so high that his counsel and services were sought in all cases before the court and before juries brought and tried in the vicinity of Ramsey county, and he became absorbed in and wedded to his profession; and he performed more and harder labor therein than his health or strength justified, and this hastened the breaking down of a constitution of iron mould. The trial of cases requiring close analysis, great study, deep thought, and working out through the courts of last resort principles that would win his case, and at the same time be beneficial to all men, were his constant delight. The famous Ross case, that he brought and tried in the United States Circuit Court for the Eighth Circuit, and won both in that court and in the Supreme Court of the United States, whereby he secured the adoption of the principle that a conductor of a railroad train, who has the right to command the movements of the train, and to control the persons employed upon it, represent the company while performing those duties, and does not bear the relation of fellow servant to the engineer and other employees of the corporation on the train, was one of the cases on which he performed great labor and much study, and which afforded him great gratification. A great many other cases involving nearly every principle that can arise under the law of negligence were tried by him, and subtle distinctions were drawn and rules and precedents distinguished in a manner and with a precision rarely found at the bar or in the courts. To labor in these cases and evolve 4 and establish by judicial decision the rules that should and do govern them was to him a daily delight and constant joy. His law practice increased continually from the time he became a resident of Minnesota; while in public life it was conducted mainly by his partners in such manner as to add to his own reputation and be of advantage to his business associates. Notwithstanding his devotion to his profession he found time to devote to literature and the arts. He wrote "The Law in Shakespeare,” “Madam Roland,” “Modern Feudalism,” ("The Modern Corporation”), “Lectures on International Law,” besides many orations and addresses, delivered at the laying of the cornerstone of the capitol, the dedication of statues and monuments, and other occasions of public importance, all bearing the impress of his genius, his literary attainments, and his devotion to the public welfare, and showing the inspiration of a rising and growing state of future growth, development and improvement of a promising and illustrious future, and absence of anything like degeneracy or decay. He brought to every position in which he was called to act a mind stored with the required knowledge, a calm and matured judgment, and the courage to follow his convictions. Great as was his fame at the bar and in the field of literature, it is surpassed beyond measure by the fame acquired in the public service, and the reputation he acquired as a statesman. He had a clear under- standing of the law of nations, and was thoroughly familiar with all those underlying principles of government embodied in the constitution and laws of the United States, and a clear perception of the dividing line between the federal power and the powers of the respective states, nor was he at a loss at any time to know when and how those powers which had been vested in the government and its officers were to be used, whether through the judicial department by way of injunction to prevent the destruction of property, or through the executive department and the army and navy. When, in a period of great disorder, in 1894, some of his constituents, styling themselves “The Railway Employees of Duluth,” requested him to support Senator Kyle's “Mail Resolution,” then before congress, which in substance provided that the detaching of passenger cars from mail trains should not constitute an offense against the United States, he answered immediately, although this dispatch was received in the dead of night and he was aroused from a sound sleep to receive it, writing it while sitting up in bed, as follows: 5 “I have received your telegram. I will not support Senator Kyle's resolution. It is against your own real welfare. It is also a blow at the security, peace, and rights of millions of people who never harmed you nor your associates. My duty to the constitution and the laws forbids me to sustain a resolution to legalize lawlessness. The same duty rests upon yourself and your associates. The power to regulate commerce among the several states is vested by the constitution in congress. Your associates have usurped that power by force at Hammond, Ind., and other places, and have destroyed commerce between the states in these particular instances. You are rapidly approaching the overt act of levying war against the United States, and you will find the definition of that act in the constitution. I trust that wiser thoughts will regain control. You might as well ask me to vote to dissolve this government.” It required no time nor thought for him to decide that powers of government might as well not exist and not have been granted, as not to be properly applied and used in an emergency and on a proper occasion.